A recent decision from the Supreme Court of Warren County, John Carr v. Village of Lake George Village Board, demonstrates how a simple omission on a site plan approval application can upend an approved project, even though the municipality wants the project and enacted a local law to smooth the pathway for its approval.

James Quirk (Quirk) owns property in the Village of Lake George (Village). In February 2018, Quirk applied to the Village Zoning Board of Appeals (ZBA) for variances to construct a 12,000 square foot boat storage facility. Quirk also owns an adjacent parcel, on which there is a laundromat and for which he previously received approval from the ZBA for outdoor boat storage. Petitioner John Carr (Petitioner) owns two parcels that are adjacent to the parcel where Quirk wants to construct the boat storage facility.

Quirk requests an area variance from the rear set-back requirement for the 12,000 square foot facility and variances from the Village’s mandatory Architectural Standards and Guidelines (Architectural Guidelines) regarding roof pitch and building materials. The ZBA granted these variances in April 2018.

Petitioner then sued to annul the ZBA determination, which proceeding was resolved by Stipulation and Order dated June 18, 2018, whereby the ZBA determination was without prejudice to the filing of future applications for the variances.

On July 16, 2018, the Village Board adopted Local Law No. 8 of 2018, which permits waiver of the mandatory Architectural Guidelines by the Village Planning Board (Planning Board) during Site Plan Review, provided it is proven there will be no adverse impact on the ‘architectural character’ of the neighborhood. Local Law No. 8 provides that the criteria for assessing a waiver are the same as those used for area variance reviews.

In August 2018, Quirk again applied to the ZBA for the 9-foot area variance from the rear set back requirement of 15 feet. He also applied to the Planning Board for site plan approval for the boat storage facility, including a request under Local Law No. 8 for waivers from the Architectural Guidelines relating to (1) a 14-foot ceiling height restriction so that he can build a one-story 40-foot tall building, (2) a requirement that metal siding cannot be used on any portion of a building so that he can use metal siding for the entire building, (3) a requirement for a gabled roof so that he can construct a flat-roof structure, and (4) an 18-inch width eave requirement so that he can have eaves that are 7.25 inches wide.

The ZBA granted the rear set-back area variance at its meeting on September 5, 2018 , but at its meeting on November 7, 2018 , the ZBA announced that its September 5th determination was a nullity because it did not have the Warren County Planning Board’s report as required by § 220-82 of the Village Code at the time it approved the variance. That report was issued before the November 7th meeting and it indicates the application would have no county-wide impact. As a result, at the November 7th meeting, the ZBA issued a new decision granting the rear set-back area variance.

At its meeting on January 16, 2019 , the Planning Board granted the requested waivers under Local Law No. 8 and approved the site plan.

The Lawsuits

Petitioner brought two separate lawsuits. The first proceeding was commenced on October 2, 2018, and seeks to annul, vacate and set aside Local Law No. 8, enjoin the Planning Board from granting any waivers pursuant to Local Law No. 8 and set aside the area variance issued by the ZBA. The second proceeding was commenced on February 15, 2019, and seeks to annul, vacate and set aside the waivers and the site plan approval issued by the Planning Board. Both matters are handled together in one decision, order and judgment issued May 29, 2019, and entered June 28, 2019.

The First Proceeding

As to the first proceeding, the trial court began by noting in its opinion that:

  • Village Law § 7-712-b(3)(a) gives the ZBA the power to grant area variances
  • Village Law § 7-712-b(3)(b) sets out the specific factors the ZBA can consider in making variance determinations
  • Village Law § 7-712-b(3)(c) specifies that the ZBA shall grant the minimum variance it deems necessary and adequate and at the same time preserve and protect the character of the neighborhood and health, safety and welfare of the community.

The trial court then cited to Matter of Cohen v Board of Appeals of the Vil. Of Saddle Rock, 100 NY2d 395, 401-402 [2003], which determined that Village Law § 7-712-b preempts municipalities from enacting area variances criteria different that those contained in the Village Law. Turning to the Village’s Architectural Guidelines, contained in § 220-42 of the Village Code, the trial court noted they set forth dimensional and physical requirements related to building orientation, setbacks, and relationship to street level, building proportion and size, building materials and colors, and roof design. Relying on Matter of Lockport Smart Growth, Inc. v Town of Lockport, 63 AD3d 1549 [4th Dept 2009], lv denied 14 NY3d 704 [2010], which discussed the relationship between Town Law provisions that are similar to Village Law §§ 7-725-a(3) and (5), the trial court found Local Law No. 8 to be permissible under Village Law § 7-725-a(5).

The trial court then reviewed the challenge to the enactment of Local Law No. 8. It rejected Petitioner’s claim that the enactment violates SEQRA, finding that the Village Board properly classified the enactment as an unlisted action and completed a short form environmental assessment form (EAF) that properly determined that Local Law No. 8 will not result in any significant adverse environmental impacts.

The trial court also rejected Petitioner’s claim about the ZBA failing to comply with SEQRA when it approved the area variance. The trial court noted that the application for an individual set back variance was properly classified as a Type II action, and thus, did not require any further SEQRA review.

The trial court then rejected Petitioner’s claims that the ZBA did not apply the statutory criteria applicable to area variances. These five criteria, found in Village Law § 7-712-b(3)(b), include

  • Whether an undesirable change will be produced in the character of the neighborhood or a detriment to nearby properties will be created by granting the area variance;
  • Whether the benefit sought by the applicant can be achieved by some method, feasible for the applicant to pursue, other than an area variance;
  • Whether the requested area variance is substantial;
  • Whether the proposed variance will have an adverse effect of impact on the physical or environmental conditions in the neighborhood or district; and
  • Whether the alleged difficulty was self-created.

The trial court noted that the ZBA addressed four of the five criteria in its written decision and discussed the fifth criteria at its November 2018 hearing. Petitioner appeared at both the September and November 2018 hearings and presented documentary evidence and arguments that he claimed showed that the proposed boat storage facility was a substantial project. The trial court rejected Petitioner’s claims, noting that the ZBA appropriately considered the required criteria and that its decision was neither arbitrary, irrational or an abuse of discretion.

The trial court also ruled that Petitioner had standing because his properties are affected by Local Law No. 8 and rejected Respondents’ lack of ripeness argument, noting that the adoption of Local Law No. 8 is a definitive position which inflicted an actual, concrete injury to Petitioner and other similarly situated landowners in the Village. And, no further administrative action is available to address the claimed harm. The trial court also rejected Petitioner’s claim that the variance must be annulled because of Quirk’s failure to pay the application fee, noting that the Village Zoning Code does not even suggest that as a basis to deny an application.

The Second Proceeding

As to its ruling on the second proceeding, the trial court rejected Petitioner’s claim that the enactment of Local Law No. 8 violates Village Law §7-712-b, citing to its analysis in the first proceeding. As to the claim that the Planning Board failed to comply with SEQRA in granting the waivers, the trial court rejected Petitioner’s assertion that a separate SEQRA review is needed for each of the individual waivers sought, noting that would be unnecessarily burdensome and the waiver requests are arguably Type II actions that do not require SEQRA review.

The trial court then evaluated Petitioner’s claim that the Planning Board improperly segmented its SEQRA review. The trial court found that the Planning Board declared the site plan approval application as an unlisted action, completed a full EAF, and issued a negative declaration for the full project, including in its review both the boat storage facility lot and the outdoor boat storage lot. However, crucial to the court’s analysis is the fact that the site plan application for the storage facility did not include any information about the plans for the laundromat lot. That omitted information caused the trial court to remand the matter to the Planning Board for further SEQRA review of the whole project.

As to the remaining causes of action, the trial court rejected Petitioner’s claims that the waivers violated Local Law No. 8 or that the proposed project does not meet the site plan review criteria found in the Village Zoning Ordinance, noting it is not the role of the court to second-guess a reasoned administrative agency’s determination that is otherwise supported in the record. As to the last cause of action, that the square footage of the proposed facility violates the square footage limitation of an accessory structure, the trial court rejected this as well, noting that the Planning Board made no such determination, and Petitioner did not request any determination by the ZBA or Planning Board about this supposed zoning violation. Thus, the court noted this issue is not properly before it.

The Bottom Line

Unfortunately for Quirk, while he prevailed on every claim asserted by Petitioner against the ZBA, and on every claim except one asserted against the Planning Board, the one claim that slipped him up was something in his control – the contents of his site plan application. As a result, he is now facing a remand of his application and will need to go through the process yet again.


While the Town of Halfmoon (“Town”) in Saratoga County, New York,  may be far from any given reader, the issues in Micklas v. Town of Halfmoon Planning Board, 170 A.D.3d 1483 (3d Dep’t 2019), are close to the heart: whether a golf course may brew beer on-site for its patrons, and does such a brewery constitute an accessory use or a separate commercial business. The Appellate Division, Third Department, heard appeals from both an order and a judgment of the Supreme Court, Saratoga County, which denied a preliminary injunction and dismissed a petition to annul the site plan amendment and special use permit for the brewpub.

The Golf Course, Plans for the Brewpub and the Opposition

The Fairways of Halfmoon, LLC (“Fairways”) operates a golf course with a clubhouse, pro shop, restaurant, bar and banquet house on property zoned within the Town’s Agriculture-Residence zoning district (“ARD”). In 1999, Fairways obtained site plan approval and a special use permit for the improvements on the property. Eighteen years later, in 2017, Fairways sought a site plan amendment and special use permit to, among other things, build an addition to the existing bar and restaurant to brew beer for patrons’ purchase and consumption. Two neighbors opposed the application and argued the brewpub was not a permitted use in the ARD and would negatively affect the character of the neighborhood.

The Town’s engineer characterized the brewpub as a Type II Action under the State Environmental Quality Review Act (“SEQRA”), for which no environmental review is required. The Town Planning Board (“Planning Board“) used the same characterization throughout the application review process. However, in its May 2017 resolution amending the site plan (with conditions) and granting the permit, the Planning Board inexplicably denoted the brewpub as an Unlisted Action (which requires environmental review under SEQRA) and issued a negative declaration (finding no significant environmental impact). The neighbors argued that these inconsistent project classifications and analyses, among other things, constitute noncompliance with SEQRA, and therefore the approvals must be annulled.

One of the neighbors submitted an interpretation request to the Town’s Director of Code Enforcement (“Director”) asking whether a brewpub could be built within the ARD and in conformance with the Town Code. The Director issued a responsive letter concluding the Town Code did not speak to where a building could be constructed. In addition, the Director issued a second letter advising that the Town’s Code Enforcement Office does not address zoning issues and that such questions must be directed to the Planning Board. The neighbor appealed the Director’s determinations to the Town Zoning Board of Appeals (“ZBA”), which upheld them in a September 2017 decision.

The Challenges, the Case and the Resolution

The neighbors commenced two Article 78 proceedings; the first challenged the Planning Board’s decision to amend the site plan and issue the special permit and alleged SEQRA violations, and the second challenged the ZBA’s decision to uphold the Director’s determinations. These two cases were consolidated. In addition, the neighbors sought a preliminary injunction barring construction of the brewpub during the pendency of litigation.

The Supreme Court issued an order (“Order“) denying the preliminary injunction. Fairways proceeded with construction of the brewpub throughout the litigation and, during appeal, would argue the challenges should be dismissed on the grounds of mootness and laches because the brewpub was substantially complete. Ultimately, the Supreme Court issued a final judgment (“Judgment“) dismissing the consolidated proceedings. The neighbors appealed from both the Order and the Judgment.

The Appellate Division dismissed the appeal from the Order denying the preliminary injunction because no appeal lies as-of-right from a non-final order in an Article 78 proceeding. The appeals court noted that the neighbors could have raised the denial of injunctive relief on their appeal from the Judgment, but they failed to brief those issues on appeal from the Judgment, so these issues were abandoned.

Substantial Completion Does Not Necessarily Moot a Claim; No Laches

Regarding the appeal from the Judgment, Fairways argued they had substantially completed the brewpub, and so the appeal was moot. The Appellate Division rejected Fairways’s mootness argument because: (i) substantial completion does not necessarily render an appeal moot; (ii) the brewpub addition could be razed or the brewing operations enjoined within it; (iii) the neighbors promptly challenged the approvals and moved for preliminary injunctive relief; and (iv) the Supreme Court made clear that injunctive relief remained a possibility and Fairways should be incentivized to limit construction activity in the meantime. Accordingly, Fairways was on notice that its construction of the brewpub was at its own risk and the appeal was not moot. The Appellate Division also denied Fairways’s claim of laches, finding that there was no prejudicial neglect in the neighbors promptly asserting their claims.

Turning to the merits, the Appellate Division addressed: (i) the Planning Board’s SEQRA review; (ii) the Planning Board’s approval of the brewpub; and (iii) the ZBA’s decision to uphold the Director’s determinations.

SEQRA Sufficed by Substance over Form

With respect to SEQRA, the Planning Board proffered clerical error as their excuse for the inconsistent SEQRA nomenclature and process – having characterized the brewpub project as a Type II Action throughout review, yet resolving to classify the brewpub as an Unlisted Action and issuing a negative declaration. The appeals court held that, even if there was no clerical error, the Planning Board’s review sufficed SEQRA for purposes of reviewing an Unlisted Action. The short form environmental assessment form gave no reason for concern. The Town’s engineer opined that no further environmental review was necessary. And, the Planning Board solicited input from the community, public safety officials and interested agencies.

The review process established the brewpub project was limited in scope and confined to already disturbed areas around the clubhouse. Furthermore, the conditions imposed upon the amended site plan addressed the few potential environmental impacts, i.e. parking, ingress/egress and disposal of brew byproducts. The Appellate Division concluded:

“[A]lthough it might have been better for the Planning Board to set forth a more reasoned elaboration for the basis of its determinations, this particular record is adequate for us to exercise our supervisory review to determine that the Planning Board strictly complied with SEQRA procedures applicable to unlisted actions, and the negative declaration it made is supported by a rational basis in the record.”

Limited Brewing is Attendant to the Operations of the Golf Course

Next, the Appellate Division addressed whether the Planning Board’s approvals were arbitrary and capricious. The ARD permits “private or public recreation or playground areas, golf clubs, country clubs or other open recreation uses” as special uses, but does not permit “commercial facilities or amusement parks.” Fairways held a special permit for a restaurant, bar and banquet house attendant to its golf club since the 1990s, and sought to add the brewpub as an extension of the bar and restaurant (with additional space for it). Fairways represented its brewer’s license limited retail beer sales to customers on-site and would not exceed 400 kegs per year. The appeals court concluded:

“Inasmuch as the clubhouse bar selling alcohol to customers is a permissible special use [in the ARD] as an attendant use to a golf club, the Planning Board had no obligation to, sua sponte, refer the matter to the ZBA for a superfluous interpretation as to whether an affiliated brewpub making similar sales of its own beer at the same site under the same liquor license was a prohibited commercial facility.”

The Planning Board reviewed the requisite factors set forth in the Town Code and allowed the brewpub – with conditions intended to minimize its negative impacts on neighbors and to ensure its functionality as a permitted amenity to the golf club, rather than a stand-alone business. This determination is rational.

Vague Inquiries to Code Enforcement and the ZBA Do No Warrant Judicial Review

Lastly, the Appellate Division considered the challenge to the ZBA’s decision to uphold the Director’s determinations, which the Supreme Court declined to rule on. The Appellate Division found that the challenged decision arose from a vague question posed by the neighbor to the Director, i.e. as to whether a generic brewpub could ever be built within the ARD in accordance with the zoning ordinance. It also noted that the ZBA agreed with the Director’s determinations. Because the ZBA’s decision had no connection to either the Planning Board’s approvals for the brewpub or the issuance of the building permit for the same, addressing this claim would have no immediate and practical consequence for the parties and would effectively be an advisory opinion. Therefore, the Supreme Court properly declined to consider it.

The Hank Hudson Brewing Co., founded by two high school teachers, opened at the golf course in the fall of 2018. Cheers.

Recently, a number of municipalities in New York have enacted local zoning laws restricting the locations where e-cigarettes and other vaping products may be sold. Although the rationale for these laws varies somewhat among the municipal agencies that have adopted them, a common thread appears to be the health and safety concerns associated with vaping, and in particular, the prevalence of vaping among teenagers. Unsurprisingly, several of these laws confine vaping uses to districts that are removed from downtown centers and, presumably, less accessible to young consumers. But the trend now has some businesses fighting back.

The Town of Bedford, in Westchester County, is currently defending a lawsuit filed by a consortium of gas station owners and operators over their ability to sell vaping products as part of their retail operations. The action, titled Bedford Village Service Station of Westchester Inc., et al. v. Town of Bedford, is pending in State Supreme Court, under Index No. 70064/2018.

On May 7, 2018, the Town adopted Local Law 5-2018, which enacted Section 125-29.8 of the Town Code governing “Electronic Nicotine Delivery Systems.” The law states that “vape shops” – which is defined broadly to include any business selling electronic nicotine delivery systems as a primary or ancillary use – shall be restricted to the Roadside Business District only. The law goes on to state that the sale of electronic nicotine delivery systems in the Town outside the RB District shall be unlawful.

In July of 2018, the Town began notifying businesses outside the RB District that they were required to end the sale of electronic nicotine delivery systems within six months, or face prosecution under the Town Code. In response, the plaintiffs, all of which had received notices, commenced an action seeking a declaration that the Town’s law is invalid and unenforceable on the grounds that it exceeds the Town’s zoning authority under State law. Plaintiffs argue, specifically, that the Town is not seeking to regulate the plaintiffs’ use of land and the impacts associated with those uses, but rather, is seeking to combat the perceived social evil of “youth vaping.”

Contemporaneous with commencing their action, the plaintiffs made a motion asking the Court to temporarily restrain the Town from enforcing the new law pending the outcome of the litigation. On May 1, 2019, the Court granted the plaintiffs’ motion finding, among other things, that they had demonstrated a likelihood or probability of success on the merits. The Court opined,

The legislative findings demonstrate the ordinance was enacted not to address the use of the land, but to address the general health issue of youth vaping. [However], the record is devoid of evidence demonstrating that the rise in youth vaping is caused by, or is correlated with, the nature of plaintiffs’ land such that it would be relevant to zoning. Bedford Vill. Serv. Station of Westchester Inc., et al. v. Town of Bedford, Sup Ct, Westchester County, May 1, 2019, Lefkowitz, J., Index No. 70064/2018, Decision & Order at p. 5, 6.

The Court’s finding on this point could be an indicator of how the action will play out, if it is litigated to a conclusion.  The suit is still in its early stages.

On Long Island, the Town of Islip is facing an analogous lawsuit filed by a vape shop currently operating in the heart of Sayville village. In May of 2016, Islip amended Section 68-341.1 of the Town’s zoning code to add “vape shops” and “vape lounges” to the list of uses restricted to the Town’s Industrial 1 zoning district. The list, which includes “adult bookstores”, “adult drive-in theaters”, “adult entertainment cabarets,” “adult motels”, “message establishments”, and “peep shows”, is intended to contain the spread of uses which the Town has identified as having “objectionable characteristics” and “contribut[ing] to the blighting or downgrading of the surrounding neighborhoods or land uses”. Town of Islip, Code § 68-341.1(A) (1997). This rationale, as stated in the law, is known as the “secondary effects doctrine”, which has been used to justify the restrictive zoning regulations placed on “adult” uses over the last several decades.

Following the enactment of the amended zoning, the Town directed the owner of Blackwater Vapor to relocate his business within one year and 99 days, or face prosecution for violating the Town’s zoning ordinance. The owner appealed to the Town’s Zoning Board of Appeals seeking an exemption from the law on the grounds that his shop is a pre-existing use that was lawfully open and operating prior to the zoning amendment. The Zoning Board denied the appeal. In response, the owner of the shop has filed an Article 78 Proceeding (an expedited form of litigation) challenging the Zoning Board’s decision. 10-14 Main Street LLC v. Lorenzo, et al., Sup Ct, Suffolk County, Index No. 0001474/2019.  As of July 5, 2019, no decision had been issue.

We will continue to monitor the progress of these disputes as they unfold.  To review the local laws mentioned in this post, they can be found at https://www.generalcode.com/resources/ecode360-library/#NY, search “Bedford” and “Islip”, respectively.


A recent ruling by the Appellate Division, Second Department, Matter of Coney Island Boardwalk Community Gardens v City of New York, concerned the fate of a parcel of land located at the Coney Island boardwalk. That parcel was owned by the City of New York and had been used for several years as a community garden. When the City decided it wanted the site to be redeveloped as an amphitheater, the community gardeners objected. They claimed the site had been impliedly dedicated to parkland by the community garden use and could not be alienated to use as an amphitheater without the express consent of the state legislature. The Court disagreed, allowing the City to redevelop the site without the added burden of obtaining legislative approval.

The Public Trust Doctrine

As explained in a prior posting by Anthony Guardino, when a municipality owns land for public use as a park, the municipality holds that land “in trust for that purpose” and cannot convey that land without the approval of the state legislature. This is true regardless of whether the land is officially or impliedly dedicated as a park. While it is not difficult to establish that the public trust doctrine applies in the case of an officially dedicated park, it is not so easy when no such official dedication exists. That was the problem faced by the community gardeners, a problem they were unable to overcome.

The Boardwalk Decision

The parcel at the center of this dispute was allowed to be used as a community garden through a series of license agreements between 1997 and 2004, as part of the City’s “GreenThumb program.” As is typical of license agreements, these agreements “were terminable at will at the City’s sole discretion.” The first termination occurred in 1999, when the City was going to develop the parcel into a parking lot for the Brooklyn Cyclones baseball stadium. A separate prior action resulted in the City being temporarily restrained from interfering with all of the GreenThumb gardens, resulting in the City executing new licenses in 2000 and 2003 for the garden. That action was settled, and the settlement agreement expressly noted that this particular parcel was not designated parkland. In August 2004, the City terminated the license, and the community garden was relocated to a different parcel in accordance with the terms of the settlement agreement.

The lot was not converted to a parking lot for the stadium. Rather, the City engaged in developing a series of strategic plans over the next decade to revitalize the Coney Island Boardwalk. While the City pondered the fate of the area, community members revived the garden on the parcel without the consent of the City.

In 2013, the City finally decided to adopt a plan for an amphitheater for the parcel and other nearby parcels. The unlicensed garden was destroyed during the development of the lots.

The community gardeners brought a hybrid proceeding, seeking to invalidate the parcel’s conversion to an amphitheater. They also sought a declaratory judgment to have the parcel declared parkland and the City’ actions as violating the public trust doctrine.

Unfortunately for the community gardeners, the appellate court, (as well as the trial court), sided with the City. The appellate court discussed the requirements to establish an implied dedication to parkland. Parties seeking to challenge the alienation of land they claim is subject to implied dedication to parkland must show (1) a clear and unmistakable intent to use the land for public use, and (2) the public acceptance of that land for a public use. The appellate court further noted that although this is often a question of fact that must be decided by looking at the owner’s acts and declarations about the parcel, if those acts are equivocal or plainly do not show the “intention to permanently abandon the property to the use of the public,” an implied dedication will not be established.

Applying those principles to the facts, the appellate court found the City had not unequivocally intended to dedicate the parcel as parkland. On the contrary, the evidence showed the City allowed the community garden to exist only on a temporary basis and intended to develop the parcel for other uses. The fact that the City’s Department of Parks and Recreation exercised management over the lot, which was found to be temporary and provisional, did not raise a triable issue.

Fairway Manor, a senior rental housing complex for ages 55 and older, located on the border of Blue Point and Bayport, was created in 1991 when the Town Board of the Town of Islip approved a change of zone application on a 70 acre parcel (with 45.6 acres located in the Town of Islip and the remainder located in the Town of Brookhaven) to construct a 394 unit senior citizen residential development. The project was deemed a Type I action pursuant to the New York State Environmental Quality Review Act (“SEQRA”) and an Environmental Impact Statement (“EIS”) was completed. As part of the original approval, a covenant was recorded limiting the number of units to 394 for the portion of the property located in Islip and requiring 21.72 acres to become a 9-hole golf course or remain open space.

In 2014, Fairway Manor applied to the Town of Islip for a change of zone to amend the covenants and restrictions on the property seeking to build an additional 260 units which was above the residential density permitted on the property. Thereafter, the application was reduced to construct 156 units on the east side of John Avenue, just south of Sunrise Highway in Bayport, which complied with the Town of Islip’s zoning code for the maximum residential density of 12 units per acre. Approximately 13 acres were proposed to remain open space. In response, Fairway Manor submitted a short form Environmental Assessment Form in connection with its application. The Blue Point Community Civic Association objected to the application, arguing, in part, that the project should not be permitted to expand into the original 21 acres of open space.

An initial public hearing was held before the Town Board in 2014 where the Board, pursuant to referral recommendations from the Planning Board, reserved decision for further review of the project and kept the public hearing record open. In March of 2017, the Planning Board held a public hearing and sought additional information from the applicants. In response, Fairway Manor submitted a comprehensive traffic impact review and waste and sewage treatment plan to expand and improve the capacity of its existing sewage treatment facility. The Planning Board recommended approval to the Town Board. On July 27, 2017, the Town Board held another public hearing and, regardless of the opposition, adopted a resolution adopting a negative declaration pursuant to SEQRA and approving the application.

Petitioners, the Blue Point Community Civic Association, Inc., brought a hybrid Article 78 Proceeding/Declaratory Judgment action alleging that a positive declaration should have been adopted in connection with the application and an EIS prepared. Specifically, petitioner’s action sought (a) to declare that the Town Board resolution issued on July 27, 2017 granting approval was issued in violation of the SEQRA and as a result was void ab initio; (b) to vacate the Town Board resolution as unlawful, arbitrary and capricious, an abuse of discretion and unsupported by substantial evidence; (c) to remand the matter to the Town Board with a direction to make a finding of significant adverse environmental impact and requiring the preparation of an EIS; (d) to enjoin the Town respondents from issuing, granting, awarding or otherwise authorizing any site-plan approval, permit, license or other approval based upon the resolution; and (e) an award of costs and disbursements.

The Supreme Court, Suffolk County, in Matter of Blue Point Community Civic Assn. Inc. v. Town of Islip et al., 2019 Slip Op 50906(U), June 11, 2019, denied the petition and dismissed the proceeding finding that the Planning Board and Town Board took the required hard look at the relevant areas of environmental concern and made a reasoned elaboration for their basis of approving a Negative Declaration and approving the application. The Court quoted Jackson v. NY State Urban Dev. Corp., 67 NY 2d 400, 416-417 (1986) stating,

“SEQRA contains no provision regarding judicial review, which must be guided by standards applicable to administrative proceedings generally: “whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion” (CPLR 7803 [3]; see, Matter of City of Schenectady v Flacke, 100 AD2d 349, 353, lv denied 63 NY2d 603; Matter of Environmental Defense Fund v Flacke, 96 AD2d 862). In a statutory scheme whose purpose is that the agency decision-makers focus attention on environmental concerns, it is not the role of the courts to weigh the desirability of any action or choose among alternatives, but to assure that the agency itself has satisfied SEQRA, procedurally and substantively.

More particularly, in a case such as this, courts may, first, review the agency procedures to determine whether they were lawful. Second, we may review the record to determine whether the agency identified the relevant areas of environmental concern, took a “hard look” at them, and made a “reasoned elaboration” of the basis for its determination (Aldrich v Pattison, 107 AD2d 258, 265, supra; Coalition Against Lincoln W. v City of New York, 94 AD2d 483, 491, affd 60 NY2d 805, supra; H.O.M.E.S. v New York State Urban Dev. Corp., 69 AD2d 222, 232). Court review, while supervisory only, insures that the agencies will honor their mandate regarding environmental protection by complying strictly with prescribed procedures and giving reasoned consideration to all pertinent issues revealed in the process.”

After reviewing the record before the Planning Board and Town Board the Court held that both boards considered all of the statutory factors and used the requisite balancing test under SEQRA.  Therefore, the SEQRA review was upheld and the matter was dismissed.

A recent case from the Third Department, Shea v. Signal Hill Road LLC, involved a dispute about untrimmed trees that blocked the view of the adjoining property owner to Lake Placid and the surrounding mountains. The trial court sided with the adjoining property owner, finding that the restrictive covenant contained in the deeds was enforceable, requiring the trees to be cut back, a ruling that was affirmed by the Third Department. The Third Department’s decision explained the proof required to establish and enforce a restrictive covenant and discussed defenses that may undermine that right, which defenses were found not to apply in this case.

The Restrictive Covenant

The restrictive covenant at issue was contained in the original deeds from the developer of the residential neighborhood, issued around 1950. That covenant provided that the maximum height of trees, shrubs and bushes on the sites could not exceed 15 feet over “the natural grade of the property at the point of planting.” The covenant further provided that the height restriction applied to foliage “now existing or which may be hereafter planted upon the premises.” These deeds also expressly specified that the restrictive covenant “shall run with the land” and that is was being imposed to maintain a “high-class development.” The covenant also expressly provided that the developer “reserves to itself and to its successors, or assigns…the right to waive or alter such…restrictions as it may deem best for the benefit of the whole community in any particular instance.”

The Facts

  • The Parties’ Chain of Title

The parties obtained their properties through two separate chains of title from the original developer. Defendant Signal Hill Road LLC’s principal, Frederick Brown, purchased his site (Plot No. 23 on the original subdivision map) in 2003. He transferred it into the LLC in 2010 for estate planning purposes. Plaintiffs, the Shea family, purchased their property (Plot No. 18 on the original subdivision map) in 1989. Each of these deeds expressly noted they were subject to the restriction and “to the faithful observance of” the restriction, which “firmly bind and obligate themselves, their distributees and assigns.”

  • Previous Tree Trimming

Plaintiffs’ property is located uphill and further from the lake than defendant’s property. In 1989, when the Shea family purchased their home, they required the seller to trim the trees on both parcels, to enhance their views of Lake Placid and the surrounding mountains. After defendant purchased his parcel in 2003, he allowed the Shea family periodically to trim the trees on his property. The Shea family would also trim the trees on their own property at the same time. This continued until 2013, when defendant moved to his property full-time, at which time he prohibited the Shea family from trimming the trees on his site and refused to trim those trees himself. The Shea family sued to enforce the restrictive covenant.

The Legal Analysis by the Third Department

In deciding the matter, the Third Department first discussed the proof needed to enforce the restrictive covenant. It noted that in order to establish that the restrictive covenant ran with the land and was binding on defendant, plaintiffs had “to establish by clear and convincing evidence that (1) the grantor and grantee intended the covenant to run with the land, (2) there is privity of estate between the parties to the current dispute, and (3) the covenant touches and concerns the land.”

The Third Department found that the deeds explicitly recited that the restrictive covenant ran with the land, applied to current and future plantings, applied to successors and assigns, and was inserted to preserve the high-class nature of the neighborhood, all of which demonstrated on-going and permanent obligations. This satisfied the first factor.

The Third Department also found that plaintiffs established the second factor, privity of estate, by showing that the properties derived from the same original grantor, (the developer), who imposed the covenant. This “vertical privity” satisfied the second factor.

As to the third factor, the Third Department rejected defendant’s argument that the covenant only imposed a maintenance burden on the trees but did not impose a burden on the actual land. Rather, the appellate court noted that the on-going maintenance obligation impacts the land.

The Third Department also gave short shrift to defendant’s other arguments against enforcement of the covenant. While the Court acknowledged that plaintiffs may have occasionally waived defendant’s maintenance obligation, or that other sites in the development may not have sought to enforce the covenant at all, these facts do not extinguish the Shea family’s right to enforce the covenant. The Court noted that there was no agreement between the parties to extinguish the covenant, and there was no showing that the restriction had no value to the Shea family or had become an onerous burden to defendant. Rather, the evidence showed that the lovely view the Shea family had from their deck had been impeded by defendant’s untrimmed trees and that this lake view had significant value.

The appellate court also rejected defendant’s statute of limitations argument, noting that the limitations period for enforcing this type of restrictive covenant was six years. As plaintiffs commenced the action shortly after defendant refused to allow the trimming in 2013, the action was found to be timely. The Court also rejected the defense of laches, noting that plaintiffs had not delayed and that defendant was neither surprised nor prejudiced by this proceeding.




A recent Second Department decision applying the doctrine of laches highlights the importance of taking prompt action against a property owner who may be acting in violation of a zoning or building code.

The dispute in Kverel v. Silverman arose when the defendant contracted to purchase an undeveloped parcel of land (the “Premises”) in the Town of Southampton (the “Town”) from a non-party seller.  The plaintiffs owned the residence adjacent to the Premises.  After the defendant was issued a building permit for the construction of a single-family residence on the Premises, one of the plaintiffs filed an appeal with the Town’s Zoning Board of Appeals (the “ZBA”), alleging that the building plans violated the 32-foot and 2-story height limitations of Section 330-11 of the Town zoning code and that the proposed structure would interfere with his waterfront view.  The plaintiff later withdrew that appeal after the defendant amended his building permit and submitted revised building plans.  Nonetheless, it was evident that the plaintiffs still opposed the construction, despite the withdrawal of their appeal.

After the defendant purchased the property, but prior to the commencement of construction, he amended the building permit twice more, and then again about six months after construction began.  Thereafter, the plaintiffs sought to enjoin the defendant from proceeding with the construction on the grounds that the plans violated the Town zoning code.  The defendant cross-moved to dismiss.  The lower court granted the plaintiffs’ requested injunctive relief and denied the defendant’s cross-motion to dismiss.  The lower court also denied the defendant’s subsequent motion “to increase the amount of the undertaking posted by the plaintiffs” and his motion “for leave to renew his opposition to the plaintiffs’ motion for a preliminary injunction.”  The defendant appealed the lower court’s orders.

The well-established doctrine of laches is appropriate when a party demonstrates:

“‘(1) conduct by an offending party giving rise to the situation complained of, (2) delay by the complainant in asserting his or her claim for relief despite the opportunity to do so, (3) lack of knowledge or notice on the part of the offending party that the complainant would assert his or her claim for relief, and (4) injury or prejudice to the offending party in the event that accorded the complainant’ (Stein v Doukas, 98 AD3d 1026, 1028, quoting Cohen v Krantz, 227 AD2d 581, 582; see Deutsche Bank Natl. Trust Co. v Joseph, 117 AD3d 982, 983).”

In reversing the lower court, the Second Department notes that in applying laches, courts must look to the effect of the delay and not only at the length of the delay.

In this case, construction had commenced and the defendant planned to sell the home that was to be built several months before the plaintiffs brought this action.  Instead of promptly pursuing an administrative appeal or taking other immediate legal action, the plaintiffs waited nearly three years after the defendant was initially issued the building permit, and more than six months after construction on the Premises began.  Furthermore, the Court points out that because the plaintiffs were aware of the potential Town code violations when they initially filed their ZBA appeal in July 2012—prior to the defendant’s purchase and at which time the Premises was still undeveloped—the subsequent amendments to the building permit were of little consequence.

Despite their opposition to the defendant’s proposed development from the very outset, the plaintiffs failed to fully pursue their administrative remedies or seek any injunctive relief until March 2015, when they commenced this action.  Because the defendant demonstrated that he would be significantly prejudiced by the plaintiffs’ unreasonable delay, for which they could offer no justification, the Second Department reversed the lower court’s rulings and held that the doctrine of laches barred the plaintiffs’ action.

It is important to act promptly when considering a challenge to development.  He who hesitates, loses.

The Hempstead Town Board recently approved a sweeping rezoning of portions of North Lawrence and Inwood that are designed to encourage mixed-use, commercial and transit-oriented developments.  This rezoning initiative, which was spearheaded by Hempstead Town Councilman Bruce Blakeman, hopes to transform derelict areas north of the Lawrence and Inwood Long Island Rail Road stations into walkable, affordable neighborhoods filled with hundreds of new apartments.

The new legislation, codified in Building Zone Ordinance (BZO) §§ 432, 433 and 434, creates three new zoning districts – a Transit Oriented Development (TOD) District, a Neighborhood Business (NB) Overlay District and a Residential Townhouse/Rowhouse (TR) Overlay District.  The vision behind each of these districts is to create vibrant hamlet centers, each with a distinctive sense of place.

Transit Oriented Development (TOD) District

The TOD District is divided into 10 sub-districts that cover over 20 acres of land north of the Lawrence and Inwood LIRR stations.  In creating a TOD District, the Town seeks to encourage a mix of building types and uses and diverse housing options that will create and sustain vibrant, attractive and economically flourishing hamlet areas in a portion of the town that is characterized by industrial and manufacturing uses.

The TOD District permits multi-family and mixed-use developments in buildings of up to five stories or 60 feet in height.  Developments within the district can have a residential density of up to 60 units per acre, and those containing at least five residential units must designate at least 20% of the units as “workforce housing.”  Workforce housing units in this district must be affordable to families earning no more than 60% of the Area Median Income (AMI) for the Nassau-Suffolk, NY HUD Metro FMR Area.  The rent for these units may not exceed 30% of the combined annual gross income of all persons living in the household.

In a slide presentation made by the Town’s planning consultant, it is projected that 336 new residential units and 19,500 square feet of retail and commercial space will be developed in the North Lawrence TOD District over the next three years.  In the Inwood TOD District, the three-year projection is for 232 new housing units and 5,000 square feet of retail and commercial space.

Neighborhood Business (NB) Overlay District

The NB Overlay District applies to about 19 acres located along Lawrence Avenue between Wasner Avenue and Mott Avenue in North Lawrence, and along Dougherty Boulevard between Bayview Avenue and Mott Avenue in Inwood.  Its goal is to create “main streets” along these roads by encouraging mixed-use developments that incorporate housing and commercial uses in a walkable environment.

The NB Overlay District permits multi-family and mixed-use developments in buildings of up to three stories or 35 feet in height.  The allowable residential density is up to 24 units per acre.  Buildings containing at least five residential units must designate at least 10% of the units as workforce housing that is affordable to families earning no more than 80% of the AMI.

Residential Townhouse/Rowhouse (TR) Overlay District

The TR Overlay District covers the largest area – about 33.7 acres of mostly residentially-zoned property located north of the railroad tracks and east and west of Nassau Expressway. The primary goal of this district is to implement planning and design guidelines that will provide a variety of new housing opportunities within existing neighborhoods to support a vibrant and sustainable residential community.

The permitted uses in the TR Overlay District are limited to single-family attached dwellings on lots of at least 15,000 square feet, and at a maximum density of up to 15 units per acre.  The allowable height in this district is up to three stories or 35 feet.  Buildings containing at least five residential units must designate at least 10% of the units as workforce housing that is affordable to families earning no more than 100% of the AMI.

Expedited Entitlement Process

Applicants proposing developments that comply with the applicable use and dimensional requirements in the three new districts will qualify for an expedited approval process that bypasses the Town’s site plan review process that is typically required prior to the issuance of a building permit.  Projects in the new districts are reviewed by a Town-appointed Design Review Committee (DRC) to ensure that they meet the applicable design guidelines and site requirements.  If the DRC determines that a submission is fully-compliant with the requirements, it will submit a written recommendation to the Department of Buildings indicating that the project is exempt from the site plan process.  Although projects must still be reviewed by the Town’s Engineering Department, Highway Department and Department of Conservation and Waterways prior to the issuance of a building permit, this expedited approval process is expected to reduce the time to obtain a building permit by several months or even years.

Given the proximity of these areas to the Lawrence and Inwood LIRR stations, the zoning changes recently adopted by the Town make perfect sense from a planning perspective.  Moreover, the expedited review process will undoubtedly be welcomed by developers who typically must endure a series of lengthy and burdensome entitlement processes before they can put a shovel in the ground.  The Town should be applauded for its vision and its efforts, but only time will tell if the new law is enough to incentivize private investment in these areas.

In Rimler v. City of New York, 2019 N.Y. Slip Op. 03599 (2d Dept, May 8, 2019), which involved a challenge to the issuance of a negative declaration, the Appellate Division, Second Department, affirmed a judgment of the Supreme Court, Kings County, granting respondents’ motion to dismiss the petition and denying the petitioners’ cross-motion to extend the time to serve process nunc pro tunc. The subject project (“Project”) involved a mixed-use development in downtown Brooklyn, i.e. the sale and redevelopment of a site at the intersection of Cadman Plaza West, Clinton Street and Tillary Street (“Site”). The City of New York (“City”) owned the Site, which previously contained a two-story branch of the Brooklyn Public Library (“Library”). The Project required the demolition of the Library building, followed by the construction of a 36-story building with below-ground parking, a new Library branch, a small amount of retail space and apartments.

The City Mayor’s Office of Sustainability (“MOS”) was designated the lead agency for environmental review under the State Environmental Quality Review Act and the Rules of the City governing City Environmental Quality Review. Following the MOS’s preparation of an environmental assessment, MOS issued a negative declaration on June 12, 2015, which determined that the project would not have a significant adverse impact on the environment and that an environmental impact statement was not required. In addition, the Brooklyn Public Library, the City Department of Citywide Administration and the developer, Cadman Associates, LLC, applied to the City Planning Commission for approval of the Project because it involved the sale of City-owned land and was, therefore, subject to the City’s Uniform Land Use Review Procedure. After public hearings, the City Planning Commission approved the Project on November 2, 2015. Thereafter, the City Council held a public hearing and, ultimately, approved the Project on December 16, 2015.

The petitioners commenced their Article 78 proceeding challenging the City’s negative declaration by filing their petition on April 15, 2016, and served the petition upon the respondents between May 13 and May 23, 2016. The respondents moved to dismiss the petition on the ground that the petition was untimely served. The petitioners cross-moved, pursuant to CPLR Section 306-b, for an extension of time, nunc pro tunc, to serve the petition to the dates it was served. The Supreme Court denied petitioner’s motion to extend time to serve, granted respondents’ motion to dismiss, and held that the petition should also be denied on the merits. The petitioners appealed and the Appellate Division affirmed.

Although the petitioners timely commenced their challenge within the four-month statute of limitations, by filing on April 15, 2016, when the statute expired on April 16, 2016,[1] the petitioners failed to timely serve their petition. Ordinarily, pleadings must be served within 120 days after the filing thereof; however, CPLR Section 306-b requires that where the applicable statute of limitations is four months or less, service of the pleadings shall be made no later than 15 days after the expiration of the state of limitations. Here, the statute expired in mid-April, the time within which to serve the petitioner expired 15 days later – in early May, and the petitioners did not serve their petition until the end of May.[2]

While CPLR Section 306-b does allow for an extension of the time to serve, the Supreme Court and the Appellate Division held that the petitioners did not meet their burden to earn an extension. Courts, within their discretion, may give an extension “upon good cause shown or in the interest of justice.” The Appellate Division noted that where a party fails to attempt timely service, good cause cannot exist. Because there was no evidence in the record that the petitioners even attempted service prior to the expiration of the 15 days, good cause did not exist to justify the extension.

Additionally, the Court discussed other considerations in deciding whether to grant the extension. Even though a party need not establish reasonably diligent efforts at service, Courts may consider diligence generally – or lack thereof – together with other relevant factors, including expiration of the statute of limitations, meritorious nature of the claims, length of delay in service, promptness of the request for an extension and prejudice to the opposing party. The Appellate Division agreed with the Supreme Court that the petitioners also failed to proffer meritorious claims in their petition, and that the MOS fulfilled its review obligations.

This decision is a reminder that an Article 78 petitioner must not only be mindful of the statute of limitations, but must also be aware of the timely service requirements of CPLR 306-b.

[1] April 16, 2016, was a Saturday, and so the statute of limitations technically extended through to Monday, April 18, 2019. See N.Y. Gen. Constr. Law § 25-a(1) (“Where any period of time, computed from a certain day, within which or after which or before which an act is authorized or required to be done, ends on a Saturday, Sunday or public holiday, such act may be done on the next succeeding business day . . . .”).

[2] The technical expiration date is disputable. See supra note 1.

A recent case from the Appellate Division, Second Department, addresses one of our favorite topics, standing. It is a cautionary tale about how not to establish standing.

Tilcon New York, Inc. v Town of New Windsor involved a hybrid proceeding in which the plaintiff/petitioner asserted nine separate causes of action. The appellate court determined that plaintiff/petitioner lacked standing on each of the causes of action, resulting in the dismissal of the petition/complaint.

The case stems from a 2013 lease between Jointa Lime Company (Jointa) and the Town of New Windsor (Town) for Town-owned property. The lease expired in April 2016. Prior to the lease expiring, Jointa requested that it become a month-to-month tenant and the Town agreed, with the proviso that the Town could terminate the tenancy on 30-days’ notice. Jointa remained in possession after April 2016 and the Town continued to accept the monthly rent payments.

In May 2016, Tilcon New York, Inc. (Tilcon) commenced the hybrid proceeding. Tilcon is a business competitor of Jointa. Tilcon claimed that the month-to-month holdover tenancy violated Town Law §§ 29(11) and 64(2), General Municipal Law (GML) §§ 51 and 103 and the State Environmental Quality Review Act (SEQRA).

On appeal, the Appellate Division determined that Tilcon lacked standing on all of its asserted claims. First, the appellate court explained that standing requirements “are not mere pleading requirements but rather an indispensable part of the plaintiff’s case” and that “each element must be supported in the same way as any other matter on which the plaintiff bears the burden.” The appellate court further noted that in order to sustain a challenge to a governmental action, a plaintiff/petitioner must show “it will suffer direct harm, injury that is in some way different from that of the public at large,” and that the alleged in-fact injury “falls within the zone of interests, or concerns, sought to be promoted or protected by the statutory provisions under which the agency has acted.” The appellate court also noted that “a private citizen who does not show any special rights or interests in the matter in controversy, other than those common to all taxpayers and citizens, has no standing to sue” even if the “issue may be one of vital public concern.”

With these principles in mind, the appellate court then turned to the myriad of causes of action asserted by Tilcon against the Town.

Tilcon claimed that the Town violated Town Law §§ 29(11) and 64(2) by failing to comply with statutory requirements applicable to leasing. The appellate court found that Tilcon “failed to describe any injury to itself, either actual or potential, that has resulted from these alleged violations, much less an injury different from the general injury to the public at large that results from the Town’s alleged violation of the procedural requirements for leasing real property.” The court further noted that Tilcon, at best, may have suffered increased business competition, which the court found was insufficient to support standing.

The appellate court next dealt with the claims asserted against the Town Zoning Board of Appeals (ZBA). The appellate court noted that Tilcon was not a party to those proceedings and the decision was not adverse to Tilcon. As a result, the court found that Tilcon lacked standing for the claim asserted against the ZBA because “Tilcon failed to demonstrate it suffered an injury-in-fact distinct from the public at large.”

The appellate court next turned it focus to the claims made under SEQRA. It noted that “a generalized interest in the environment” was insufficient to establish standing under SEQRA. Similarly, the court found that Tilcon only alleged economic injury, and did not allege any environmental injury that was different from the public at large. As a result, Tilcon lacked standing to assert claims under SEQRA.

The appellate court also rejected Tilcon’s GML § 51 challenge. Tilcon was found not to have standing under that section, which “authorizes taxpayer suits to prevent waste, collusion, fraud, or other illegal acts” because Tilcon failed to include any such allegations. Rather, at most, the court noted that Tilcon may have alleged a failure to follow statutory procedure, which “does not constitute the fraud or illegality necessary to support a taxpayer action pursuant to section 51.”

Finally, the appellate court rejected Tilcon’s claims for common-law taxpayer standing. That type of claim is reserved for challenges to “important governmental actions” where “the failure to accord such standing would be in effect…an impenetrable barrier to any judicial scrutiny of legislative action.” Here, the month-to-month holdover lease was found not to be of “appreciable public significance beyond the immediately affected parties.”

This case makes it abundantly clear that standing is an essential element of challenges to municipal determinations. A petitioners needs to show more than dissatisfaction with the municipal decision. It has to explain in detail how it is injured, how its injury is different from the public at large and how it falls within the zone of interests sought to be protected by the statute under which the municipality acted. Failure to make this factual showing will doom a challenge on standing grounds.